Date: 20070205
Docket: T-371-05
Citation: 2007 FC 121
Ottawa, Ontario, February 5, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
DANIEL
BEDADA
Applicant
and
SOLICITOR
GENERAL
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
Other
than immigrants subject to a removal order, almost all other inmates in custody
are entitled to apply for day parole or unescorted temporary absence before the
inmate is eligible for full parole. In general terms an offender is eligible
for full parole after serving one-third (⅓) of their sentence and may be
eligible for day parole before that. A recent change in the applicable legislation
had the effect of depriving an immigrant inmate of the opportunity to apply for
day parole without a hearing or any other consideration applicable to other
inmates in similar circumstances.
[2]
The
issue in this judicial review is whether the current prohibition from day
parole for persons subject to a removal (deportation) order is contrary to
sections 7, 9 and 15 of the Charter.
[3]
The
current provision of s. 128(4) of the Corrections and Conditional Release
Act (CCRA) prohibits an immigrant inmate from seeking day parole until he
is eligible for full parole. Once he is eligible for full parole, the removal
order generally becomes operative and the person is deported. S. 128(4)
reads as follows:
|
128.
(4) Despite this
Act or the Prisons and Reformatories Act, an offender against whom a
removal order has been made under the Immigration and Refugee Protection
Act is ineligible for day parole or an unescorted temporary absence until
the offender is eligible for full parole.
|
128. (4) Malgré la présente loi ou la Loi
sur les prisons et les maisons de correction, l’admissibilité à la
libération conditionnelle totale de quiconque est visé par une mesure de
renvoi au titre de la Loi sur l’immigration et la protection des réfugiés
est préalable à l’admissibilité à la semi-liberté ou à l’absence temporaire
sans escorte.
|
II. BACKGROUND
[4]
The
Applicant is an Ethiopian citizen who was granted permanent residence on
January 1, 2001. He plead guilty to one count of obstruction of justice and
received a 24-month sentence. He was also convicted of several lesser offences
including fraud and fabricating evidence. His total sentence was four years and
four months.
[5]
He
was initially told that he would be eligible for day parole on February 27,
2005 and full parole on November 17, 2005.
[6]
On
December 14, 2004, the Immigration Division ordered the Applicant deported
because he had been sentenced under an Act of Parliament for a term of
imprisonment of more than six (6) months.
[7]
On
January 6, 2005, a parole officer advised the Applicant that as a result of the
deportation order, his day parole eligibility had been changed to his full
parole eligibility date of November 17, 2005 in accordance with the operation
of s. 128(4) of the CCRA.
[8]
The
Minister issued an arrest warrant under s. 55(1) of the Immigration and
Refugee Protection Act (IRPA) which is based on reasonable grounds to
believe that the person is not only inadmissible but also that he is either a
danger to the public or unlikely to appear for his removal from Canada.
[9]
Pursuant
to s. 59 of the IRPA, when a warrant is issued, the prison officials are
required to deliver the person to the Minister’s officials at the end of the
inmate’s period of incarceration. Therefore, the person can be removed as soon
as he is released on full parole.
[10]
That
is what appears to have happened in this case. The Applicant was not given day
parole; he was released on full parole and deported. He is now out of the
country and would be unaffected by any decision in this matter.
[11]
It
is noteworthy that day parole and unescorted temporary absence is available to
certain immigrant offenders who have obtained stays of removal either from this
Court or from the Immigration and Refugee Board (IRB).
[12]
The
Applicant says that s. 128(4) of the CCRA violates s. 9 or 7 of the Charter,
s. 15 of the Charter and is not saved by s. 1.
The Applicant
orally amended the wording of his request that subsections 128(4) to 128(7) of
the CCRA be declared of no force and effect and that the following words in
italics be read into s. 59 of the IRPA:
If a warrant for arrest and detention
under this Act is issued with respect to a permanent resident or a foreign
national who is detained under another Act of Parliament in an institution,
a) the detention consequent on that
warrant for arrest and detention shall be reviewable under section 57 as soon
as is practicable after the person is granted day parole or unescorted
temporary absence and every six months thereafter till the expiry of sentence
of the person, and
b) the person in charge of the
institution shall deliver the inmate to an officer at the end of the inmate’s
period of detention in the institution.
III. ANALYSIS
[13]
In
the absence of any motion by the Respondent to strike this judicial review on
the grounds of mootness, the Court raised the issue with counsel. Both parties
were prepared to argue the merits of the review and have the Court decide this Charter
challenge. The Court is not prepared to do so for the following reasons.
[14]
In
Borowski v. Canada (Attorney General), [1989] 1
S.C.R. 342, the Court further articulated the doctrine of mootness. The general
rule is that a court need not hear a hypothetical or abstract question. When
the issue of mootness arises, the issues to be faced are: (1) has the dispute
between the parties disappeared; and (2) if so, should the Court exercise its
discretion to hear the case.
[15]
In
exercising its discretion to hear an appeal (the same principle applies to a
judicial review), the rationale for mootness should be considered:
1) Usually
the presence of a live controversy ensures that the case will be argued fully.
In the current circumstances, there is no issue that Mr. Matas acted fully and
as if the controversy as regards his client was alive. The only potential
element missing was the interests of possible intervenors since the issues
could touch upon different classes of immigrants.
2) Judicial
resources should be conserved for pressing cases. In this instance the
resources were expended and the Court was in a position to render judgment.
3) The
Court must be aware of its proper function as pronouncing judgments in the
absence of a dispute may be an intrusion into the role of the legislative
branch. This rationale is particularly apt. The Applicant wishes the Court to
read into the provisions of s. 59 of the IRPA certain words so as to remove the
Charter infirmity of the existing language.
[16]
In
Phillips v. Nova Scotia (Commission of Inquiry
into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, the Supreme Court
expanded on the Borowski rationale. The Court, at paragraphs 5 and 9-12,
held that issues of law which are not necessary for the resolution of an appeal
should not be decided. This is particularly true with respect to constitutional
issues where the foundation upon which the proceedings were launched had ceased
to exist.
[17]
In
this case, the very basis for the Applicant’s claim, a right to apply for day
parole, disappeared when he was deported from Canada.
[18]
This
is not the type of issue which will only come before the Court in hypothetical
circumstances because the type of case only arises in fast paced circumstances
where the events overtake the Court process.
[19]
Particularly
in cases involving incarceration, this Court can set the matter down for
hearing in a short period of time. The issues are clear, the principles in
issue are reasonably well developed. This is not to suggest that their application
in those types of circumstances is easy but it can be done in a reasonably
expeditious manner.
[20]
Therefore,
in my view, it is not appropriate to decide these Charter issues and
potentially read in words to a statute except in circumstances where there is
meaningful impact on the litigant.
[21]
For
these reasons, the Court exercises its discretion not to decide this matter. As
the Respondent did not raise mootness, it is not entitled to its costs.
[22]
This
judicial review will be dismissed without costs.
JUDGMENT
IT IS ORDERED THAT this application
for judicial review is dismissed without costs on the basis of mootness.
“Michael
L. Phelan”
Email this Content